TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT EASTON
cl.48, Schedule 1 of the Fair Work Act 2009
Variation of a modern award
Telstra Award 2015
12.05 PM, MONDAY, 20 SEPTEMBER 2021
VICE PRESIDENT HATCHER: I'll take appearances. Mr Crawford, you appear for the Australian Workers Union?
MR S CRAWFORD: Yes, that's correct, your Honour.
VICE PRESIDENT HATCHER: Mr Rogers, you appear for the National Farmers Association - National Farmers Federation.
MR B ROGERS: Correct, your Honour.
VICE PRESIDENT HATCHER: I note there's no appearance for the issuing Contractors Association.
Well, the parties have just engaged in a private conference with Easton DP. The Deputy President forwarded to the parties a proposed variation of clause 50.1, which might resolve the difficulty identified by the Full Bench in the July decision. How do the parties wish to go on record as responding to that proposal? Mr Crawford?
MR CRAWFORD: Your Honour, the AWU is comfortable with the wording sent around by the Deputy President this morning. That concerns clause 50.1. In addition, during the conference this morning, the NFF indicated they would still press for the inclusion of some wording to largely the same effect, in a new clause 51.1(a), and the AWU would not be opposed to that additional wording going into a new clause 51.1(a), in addition to the implementation of the amended wording provided by the Deputy President this morning. That would be our position, your Honour.
VICE PRESIDENT HATCHER: Why is it necessary to say the same thing twice?
MR CRAWFORD: Your Honour, I'm not entirely convinced it is, but given that we agreed with the NFF and the shearing contractors for words to that effect to go in, over the course of the weekend, I'm reluctant to argue against it at this point, but perhaps Mr Rogers may wish to address that.
VICE PRESIDENT HATCHER: All right, thank you. Mr Rogers.
MR ROGERS: Yes, thank you, your Honour. So my concern is that the changes of 50.1 make clear what the rate of pay should be for casual employees who are engaged to work in a shearing shed, but clause 51 doesn't lend itself to casuals so it extends to non casuals. So my concern is you can read it in applying to both casuals and non casuals, whereas 51 doesn't limit - 50.1 doesn't limit 51 to only being in respect of casuals.
VICE PRESIDENT HATCHER: I understand. One, I'm not sure what the amendment would add. Well, I understand the point. I thought there was, more or less, a consensus that nobody employs non casuals in these classifications.
MR ROGERS: That is correct. As a general standing that is correct, yes, your Honour. The issue that we're trying to deal with here, I thought, was what is effectively - what we call a theoretical, extremely unlikely situation where someone may be engaged as a non casual. The concern that I have is that although someone will be engaged, on advanced, on the basis that everyone assumes they're a casual but they don't do it in accordance with the Act. They're paid the casual loading, in accordance with the schedule A at clause 51. Down the track it's determined that, no, if fact they were engaged on a permanent basis, so there might be some attempt to claw back the casual loading and if we don't adjust clause 51 there's no argument that that loading has to be paid irrespective of whether or not the person is a casual.
VICE PRESIDENT HATCHER: Sorry, which loading?
MR ROGERS: Casual loading. So if you look at schedule A, your Honour, there are a number of tables and formulas there and those formulas clearly indicate that a casual loading - they clearing include a casual loading, a 56 per cent casual loading.
VICE PRESIDENT HATCHER: It's not separately payable, it's built into the rate.
MR ROGERS: That's correct, on the assumption that the employee - sorry, your Honour.
VICE PRESIDENT HATCHER: I mean the problem is that if we emphasise that these rates are for casual employees only, then we underline the problem that there are no rates for non casual employees, don't you?
MR ROGERS: Well, we do. But this is a problem - I don't know how else we can address it, your Honour.
VICE PRESIDENT HATCHER: Well, I mean if employers - I mean we're stuck with the definition in the Act, if employers engage somebody who are, in fact, not casuals, then we can't avoid the outcome that they're entitled to the NES paid leave provisions. And I suppose that if your organisation think there's any real risk of that happening, as distinct from your hypothetical, then you apply, at some stage, for non casual rates of pay.
MR ROGERS: If that's the conclusion you want to draw, then that's that. Our concern is that we're creating a hole in the Act by specifying that these rates are payable irrespective of the nature of the employment.
VICE PRESIDENT HATCHER: I'm just tyring to work this out. You've told me that this is entirely hypothetical, on the one hand, but on the other hand you're saying it might not be.
MR ROGERS: Well, I say the intention of the parties would be that they would be casual but if, subsequently, it's determined that they were, because of the way the Act operates now, then there is a risk that they will be paid the casual loading, or entitled to the casual loading because of the way the award works, in additional to being entitled to those NES entitlements like annual leave. So that (indistinct) situation which the Act was supposed to avoid.
VICE PRESIDENT HATCHER: Yes. Well, that's only as a result of the fact that there's no rates for non casuals.
MR ROGERS: That's correct, your Honour.
VICE PRESIDENT HATCHER: Again, why can't we leave it on the basis that we will put the formal words in - I mean, the problem is, Mr Rogers, as you say, if we put the additional clause in, it makes it perfectly apparent that the award has no rates imposing on casuals.
MR ROGERS: Yes, your Honour, I can see that point. The difficulty is that, on the other hand, you'll have a situation where a non casual employee will be entitled to a 25 per cent loading and the leave provisions.
VICE PRESIDENT HATCHER: Yes.
MR ROGERS: (Indistinct) be problematic.
VICE PRESIDENT HATCHER: I understand the problem, but I'm trying to assess whether this is just a hypothetical and it's never going to happen, or whether the NFF thinks this is a real problem. I don't know - speaking for myself, I don't know much about whether workers in the categories in 50.1 have an ongoing advanced commitment to work according to a pattern of hours or pattern of work. But if you're saying that there's a risk of that, then we'll have to address it.
MR ROGERS: It's a very remote risk, your Honour, I have to concede that.
VICE PRESIDENT HATCHER: All right. I mean, again, if there's any real concern that the risk might eventuate, in reality, then the only answer is for some party to apply for non casual rates, which just involves recalculating the piece rates to remove the casual loading, I would have thought.
MR ROGERS: Yes, your Honour. (Indistinct) will be doing that then.
VICE PRESIDENT HATCHER: Yes. But we don't need to do that within the limited timescale of this review, I wouldn't have thought. All right, anything further, Mr Rogers?
MR ROGERS: No, your Honour.
VICE PRESIDENT HATCHER: Anything in reply, Mr Crawford?
MR CRAWFORD: Your Honour, I do wish to note, for the record, that the AWU does not share the view that inserting non casual rates into the award would be as simple as just taking the loading out of the formula. The rates in this award are very unique, they've developed over a long period of time and, as we've identified in an email to the Commission on 15 September, the only - in our view, the only conceivable way that an employee I this industry, in the relevant classifications, would be engaged on a non casual basis would be on a very short fixed-term contract basis and that is an issue that the AWU certainly thinks would need to be addressed if non permanent - sorry, if non casual rates are to be inserted into the award.
We're in furious agreement that that cannot, realistically, occur, as part of this review, so we agree if that issue is to be addressed it should be addressed via an application in the future and then we would obviously be given a proper opportunity to respond to that.
So, fundamentally, our position is that the - give the concerns raised by your Honour, we support the Commission's proposed wording for clause 50.1 being adopted as a conclusion to this review and then any remaining issues can be dealt with subsequently. Thank you, your Honour.
VICE PRESIDENT HATCHER: All right. We thank the parties for their submissions. We'll reserve our decision on the matter, which will be issued later today and we now adjourn.
ADJOURNED INDEFINITELY [12.15 PM]